45 Cal.App.5th 589
Cal. Ct. App.2020Background
- Mora‑Duran waived a preliminary hearing and pleaded no contest to felony marijuana cultivation (former Health & Saf. Code § 11358) in exchange for probation and dismissal of other counts; plea included stipulation he assisted with ~3,000 plants.
- Before sentencing, Proposition 64 passed, narrowing felony cultivation and authorizing petition relief for persons "serving a sentence." The measure also created felony subdivisions for cultivation that causes certain environmental harms.
- Mora‑Duran asked the court to sentence and redesignate the conviction as a misdemeanor under Prop. 64; the trial court withdrew approval of the plea pre‑sentence and reinstated the information.
- The prosecutor amended Count 2 to allege felony cultivation under § 11358(d)(3)(C) (alleging violations of Fish & Game Code §§ 5650, 5652 tied to environmental contamination). Mora‑Duran pleaded no contest to the amended felony and received probation (with time‑served credit).
- On appeal, Mora‑Duran argued (1) the court abused its discretion by rejecting the plea; (2) adding the new felony after he waived the preliminary hearing violated Penal Code § 1009; and (3) his sentence violated the federal Ex Post Facto Clause. The Court of Appeal held the § 1009 argument meritorious, reversed the felony conviction, vacated the sentence, and remanded. The court did not decide the ex post facto claim.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Mora‑Duran) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by withdrawing acceptance of the negotiated plea pre‑sentence | Court properly exercised near‑plenary discretion to accept/withdraw pleas; rejecting was justified because Prop. 64 would deprive People of bargained benefit and public/environmental interests supported withdrawal | Court erred: plea should be read to incorporate subsequent changes in law (Harris) and the court unlawfully substituted its view for parties' agreement | No abuse of discretion. Court may withdraw approval pre‑sentence; Prop. 64 relief did not apply to Mora‑Duran and thus was not incorporated into the plea. |
| Whether amending the information after Mora‑Duran waived the preliminary hearing to add § 11358(d)(3)(C) elements violated Penal Code § 1009 | Amendment merely specified which subdivision made the same conduct felony; no new charge and no prejudice | Amendment added significant new elements (Fish & Game violations), creating a different charge after waiver in violation of § 1009 | Amendment constituted a significant variance after a waiver of prelim; conviction reversed and sentence vacated under § 1009. |
| Whether sentencing under the post‑Proposition 64 scheme violated the federal Ex Post Facto Clause | No ex post facto violation; defendant’s conduct always supported a felony and punishment was not increased | Sentence applied retroactively to defendant and could increase punishment, violating ex post facto prohibitions | Not reached: court reversed on § 1009 grounds and expressed no opinion on ex post facto claim. |
Key Cases Cited
- Harris v. Superior Court, 1 Cal.5th 984 (2016) (plea agreements are deemed to incorporate changes in law when the enacting measure clearly intends to apply to parties to the plea)
- In re Alvernaz, 2 Cal.4th 924 (1992) (judicial approval is essential to plea bargains; courts protect public interest when evaluating pleas)
- People v. Kim, 193 Cal.App.4th 1355 (2011) (trial court has near‑plenary authority to withdraw approval of a plea)
- People v. Silva, 247 Cal.App.4th 578 (2016) (grounds for withdrawing plea approval include unfairness, new facts, or it not serving society’s interests)
- People v. Stringham, 206 Cal.App.3d 184 (1988) (court may reject plea for various non‑arbitrary reasons, including victim or public interest concerns)
- People v. Medina, 24 Cal.App.5th 61 (2018) (Prop. 64 preserved prosecutors’ ability to charge certain serious marijuana‑related offenses as felonies)
- People v. Peyton, 176 Cal.App.4th 642 (2009) (amendments after waiver are permissible only when they do not create a significant variance or change the nature of the charges)
- People v. Rogers, 245 Cal.App.4th 1353 (2016) (§ 1009 prohibits amending an information to add offenses not shown by evidence at the preliminary hearing)